United States v. Friedrick
842 F.2d 382 (D.C. Cir. 1988)
Facts
From 1982-1984, the U.S. Government conducted an investigation into the International Brotherhood of Teamsters related to the use of "phantom employees" who in reality rendered no services to the union. The investigation became complicated by the fact that Teamsters president Jackie Presser had been an FBI informant for many years. Presser's FBI contact was Special Agent Robert S. Friedrick.
An internal investigation ensued, and Friedrick was presented with a form ("Form 645") that indicated that he was required to provide information, and that refusal would result in sanctions including possible dismissal. Under the protection of this order, Friedrick admitted under oath that Presser had been authorized to hire "phantom employees."
Subsequently, it was learned that Friedrick's assertion - that Presser's actions had been authorized - was false. In subsequent interviews, Friedrick was questioned to determine the truthfulness of his earlier statements. At these interviews, no affirmation of immunity took place; he was told the purpose of the interview was to determine his usefulness as a grand jury witness. These interviews, including a polygraph examination, took place over the course of four days; during this time, Friedrick admitted that his prior statements had been false. Interviewing continued, going back over the information about which Friedrick had given false statements. Again, he was not informed of his rights. On the fourth day of additional questioning, he was finally informed that he could remain silent if he chose. But when Friedrick asked for clarification of his status, investigators replied vaguely.
On May 15, 1986, Friedrick was indicted for giving false statements. Friedrick moved to suppress his statements, and in December a judge concluded that the statements had to be excluded on Fifth Amendment grounds.
An internal investigation ensued, and Friedrick was presented with a form ("Form 645") that indicated that he was required to provide information, and that refusal would result in sanctions including possible dismissal. Under the protection of this order, Friedrick admitted under oath that Presser had been authorized to hire "phantom employees."
Subsequently, it was learned that Friedrick's assertion - that Presser's actions had been authorized - was false. In subsequent interviews, Friedrick was questioned to determine the truthfulness of his earlier statements. At these interviews, no affirmation of immunity took place; he was told the purpose of the interview was to determine his usefulness as a grand jury witness. These interviews, including a polygraph examination, took place over the course of four days; during this time, Friedrick admitted that his prior statements had been false. Interviewing continued, going back over the information about which Friedrick had given false statements. Again, he was not informed of his rights. On the fourth day of additional questioning, he was finally informed that he could remain silent if he chose. But when Friedrick asked for clarification of his status, investigators replied vaguely.
On May 15, 1986, Friedrick was indicted for giving false statements. Friedrick moved to suppress his statements, and in December a judge concluded that the statements had to be excluded on Fifth Amendment grounds.
Issue
Were the employee's statements made under compulsion, thus rendering them inadmissible in a prosecution?
Holding
Affirmed. Friedrick reasonably believed that if he refused to answer questions, he was subject to dismissal.
Reasoning
- "Friedrick must have in fact believed his . . . statements to be compelled on threat of loss of job and this belief must have been objectively reasonable" (395).
- "As Form 645 expressly provides, an FBI employee's refusal to answer can result in disciplinary action, including dismissal" (396).
- "As long as Friedrick believed he had a job to lose — and the FBI never treated him otherwise — there was no reason for him to believe that the interviews were not obligatory in the same manner as his prior interviews" (398).
- "Given his continuing status as an employee and our view that Friedrick reasonably believed the administrative process to be continuing, until he was told explicitly otherwise Friedrick's statements remained inadmissible" (401).
Commentary
This ruling established a two-prong test, the "Friedrick Test" or "Subjective-Objective Test":
In this case, the D.C. Circuit explicitly recognized that compulsion depends on the perception of the employee. In doing so, it effectively established a polar opposite standard to the First Circuit's decision in U.S. v. Indorato.
Whereas the Indorato doctrine requires a clear and explicit threat of dismissal, what has become known as the "Friedrick Test" or the "Subjective/Objective Test" allows for the possibility that an employee can be compelled by his/her own belief that they are subject to dismissal, so long as this belief is based on objective facts.
While the Friedrick decision directly applies only in the D.C. Circuit, it has been used as a guidepost for decisions in other jurisdictions. At the Federal level, the Friedrick interpretation has been explicitly adopted by the Eleventh Circuit and acknowledged by the Fifth and Sixth Circuits.
Allowing for a reasonable, subjective belief that one is facing severe sanctions for noncooperation falls in line with the broad, inclusive view of coercion held by the U.S. Supreme Court and re-emphasized by them in decision after decision.
- Did the employee have a subjective belief that they were subject to dismissal if they refused to answer questions?
- Was this subjective belief objectively reasonable?
In this case, the D.C. Circuit explicitly recognized that compulsion depends on the perception of the employee. In doing so, it effectively established a polar opposite standard to the First Circuit's decision in U.S. v. Indorato.
Whereas the Indorato doctrine requires a clear and explicit threat of dismissal, what has become known as the "Friedrick Test" or the "Subjective/Objective Test" allows for the possibility that an employee can be compelled by his/her own belief that they are subject to dismissal, so long as this belief is based on objective facts.
While the Friedrick decision directly applies only in the D.C. Circuit, it has been used as a guidepost for decisions in other jurisdictions. At the Federal level, the Friedrick interpretation has been explicitly adopted by the Eleventh Circuit and acknowledged by the Fifth and Sixth Circuits.
Allowing for a reasonable, subjective belief that one is facing severe sanctions for noncooperation falls in line with the broad, inclusive view of coercion held by the U.S. Supreme Court and re-emphasized by them in decision after decision.
